Central National Gottesman Inc.

 

Specialty Paper

 

TERMS AND CONDITIONS OF SALE

 

These Terms and Conditions of Sale (“Terms”) apply to and govern all sales by Central National Gottesman Inc. and its divisions, subsidiaries and affiliates, including its Central National division (collectively, “Seller”) to its Customers (each, a “Customer”).  All Customer orders are expressly and exclusively subject to these Terms.  No quotation or agreement is binding upon Seller unless confirmed by Seller's written acknowledgment or confirmation (an “Acknowledgement”), which states the only obligations to which Seller is bound.  Seller objects to any different or additional terms proposed by Customer in any purchase order, acknowledgment, website or otherwise which add to, vary from, or conflict with the Terms, and any such proposed terms shall be void, and ACCEPTANCE OF ANY ORDER IS EXPRESSLY MADE CONDITIONAL ON CUSTOMER’S ASSENT TO THESE TERMS.  Unless Customer objects promptly upon its receipt, such Acknowledgment, together with these Terms, shall constitute the entire agreement between Seller and Customer and there are no understandings, agreements or representations, express or implied, not specified herein or therein.  Subject to the express provisions of these Terms, the customs of the American paper trade relating to merchandise of the type and quality herein provided for shall apply, including without limitation tolerances as to quantity, quality (including basis weight or grammage), size (including size of sheets and width of rolls or reels) and delivery.

 

Price:  Payments shall be in United States currency, New York funds.  The price for the sale of any merchandise shall be Seller's price prevailing at time of shipment unless otherwise specifically stated on the face of an Acknowledgment. The price, if any, set forth on any Acknowledgment is the price in effect as of the date of such Acknowledgment and is included thereon for information purposes only.  The price set forth in an Acknowledgement is subject to increase if Seller's supplier’s price to Seller is increased at or before shipment.  Seller shall advise Customer in writing of any proposed increase within five (5) days thereafter.  Customer shall advise Seller in writing if such increase is unacceptable. If Customer fails to so advise Seller, such increased price shall be the price in connection with such transaction.  If Customer advises Seller that such increase is not acceptable, such transaction shall be deemed cancelled with respect to merchandise to which such proposed increase would have been applicable.  In the case of sales arranged through cooperatives, purchasing groups, or affiliated entities Seller may pay a rebate to the cooperative, purchasing group or affiliated entity in connection with such sale.  Notwithstanding the foregoing, by making a purchase, Customer specifically agrees to the price stated.

 

Taxes and Additional Charges:  All import and export duties, taxes, consular fees, tariff charges, and other charges, foreign and domestic, imposed upon the manufacture, sale, transportation, delivery and/or use of any merchandise sold to Customer by Seller in the present or future, and any increase in any such items, or in freight or insurance, whether or not included in the price under the Acknowledgement relating thereto, shall be paid by Customer or reimbursed to Seller by Customer and shall be added to the prices provided for in the Acknowledgement and the Terms.

Delivery, Title and Contingencies:  Seller shall have the right to deliver within 15% more or less of the quantities specified and within 30 days of the time specified; weight includes rolls, reels, cores, plugs and wrappings.  Seller may make partial deliveries and Customer shall accept and pay for same.  No defect or nonconformity in any shipment or delivery shall excuse Customer from accepting and paying for any other shipment or delivery. If Customer fails to take the stated quantity in any period, Customer shall not be entitled to demand the deficiency in subsequent periods and Seller may cancel all or any part of the remaining unshipped tonnage. Seller’s performance is excused if Seller's performance is, in whole or in part, prevented, delayed, hindered or rendered impracticable or more expensive by a circumstance caused in whole or in part by any condition beyond Seller's reasonable control, whether affecting the Seller, the carrier or Seller's supplier or manufacturer, including as a result of failure of Seller’s suppliers to make adequate or timely delivery of the merchandise (including as a result of complete or partial mill sale or shutdown); general labor disturbance such as but not limited to strikes, lockouts or other labor disputes; war (declared or not), hostilities, military mobilization, riot, armed conflict, insurrection, embargo or blockade; terrorism, sabotage or piracy; imposition of duties, tariffs, quotas, sanctions or other import, export or other restrictions (including restrictions on payment channels); plague, epidemic, pandemic, widespread infectious disease or public health crisis, including quarantine or other employee restriction or other emergency, statute, regulation, order or any other action of any governmental authority; transportation breakdown or delay; rejected mill runs; act of God or natural disaster such as but not limited to storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought, explosion, fire; destruction of machines, equipment factories and any kind of installation; prolonged breakdown of telecommunication or electric current; accidents; shortage or inability to obtain material or supplies, or any other circumstance beyond Seller’s control whether or not foreseeable or abatable or subject to mitigation by Seller.  Quantities so affected may be eliminated from the amount ordered at the discretion of the party affected without liability and Seller may allocate its available supply among its purchasers, but the order shall remain otherwise unaffected.  Any such failure to perform shall not constitute a default; but Seller may either cancel such transaction as to the undelivered portion or may deliver when and where (within, however, the country of destination) reasonably able; and when making deliveries, Seller may apportion Seller's available supply among Seller's customers in a reasonable manner. Shipments in transit must be accepted by the Customer.  Customer shall reimburse Seller for demurrage and warehouse charges and extra delivery expense on merchandise subject hereto which cannot be reasonably delivered as designated because of conditions beyond Seller's reasonable control, including labor unrest affecting port conditions. If for any reason beyond Seller's reasonable control, delivery is made at a location other than the location designated or if the carrier shall make delivery elsewhere than as designated under the force majeure provisions of its bill of lading, such place of delivery shall be deemed substituted for all purposes for the place so designated.

 

Delivery, Title and Contingencies : Except as otherwise provided in an Acknowledgement, shipments of merchandise from mill of manufacturer shall be delivered to Customer f.o.b. mill, less prevailing freight allowance, if any, accorded to Seller by manufacturer, and title to merchandise from any such mill and all risk of loss or damage shall thereupon pass to Customer. Shipments of merchandise from Seller's warehouses shall be subject to imposition by Seller of delivery charges, and title to merchandise from any such warehouse and all risk of loss or damage shall pass to Customer upon delivery to it at the location specified in an Acknowledgment or at such other location as Customer and Seller may agree. Any date for shipment or delivery specified on the face of any Acknowledgment is only an estimated date, and delivery by Seller shall be timely if made within thirty  (30) days thereof, or, if Seller orally or in writing notifies Customer prior to the end of said ten day period of a delay in shipment from the mill, delivery shall then be deemed timely if made within thirty (30) days after the date of shipment from the mill. Seller shall not be liable to Customer or to any other person for loss or damage of any kind because of its inability or failure to make timely delivery of merchandise as a result of failure of Seller's suppliers to make adequate or timely delivery of the merchandise.

Tolerances : Over-runs and under-runs shall be accepted by Customer in accordance with the specific policies of the manufacturer of the merchandise, and in the absence of any specific policy, usage of trade shall control.

Claims and Returns:  SELLER MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, EXCEPT THAT ANY MERCHANDISE DELIVERED SHALL BE OF THE MANUFACTURER'S STANDARD QUALITY FOR MERCHANDISE OF SUCH KIND.  THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE.  THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FOREGOING AND SELLER'S SOLE RESPONSIBILITY HEREUNDER IS AS STATED.  SELLER SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT OR LOSS OF USE), OR FOR ANY AMOUNT IN EXCESS OF THE PRICE FOR THE SHIPMENT INVOLVED, UNDER THE FOREGOING OR ANY OTHER PART OF THESE TERMS, ANY ACKNOWLEDGEMENT OR ANY OTHER AGREEMENT BETWEEN SELLER AND CUSTOMER.  ANY LEGAL ACTION AGAINST SELLER FOR BREACH OF THESE TERMS, ANY ACKNOWLEDGEMENT OR SUCH ANY OTHER AGREEMENT INCLUDING ANY WARRANTIES HEREUNDER, MUST BE INSTITUTED WITHIN THIRTY (30) DAYS AFTER DELIVERY.  Seller shall have no liability for any claim or liability arising out of the consumption or use by Customer or any other person of the merchandise subject hereto.  No claims by Customer of whatever nature may be made except in writing within 30 days after the arrival of the carrier at its destination or of the merchandise at any other place of delivery or if merchandise is stored at any point for Customer's account or delivered at any place other than specified in an Acknowledgement, within 30 days after the commencement of such storage, or the date of delivery.  Due opportunity must be given for investigation by Seller's representative. Good delivery shall be conclusively deemed to have been made if no claim is made as provided above.

 

Seller's Rights; Retention of Title.  If Customer fails, in connection with any transaction with Seller, to furnish proper letter of credit or other document, shipping instructions or specifications with respect to any merchandise in ample time prior to earliest date specified for shipment, or to accept delivery of any merchandise or to make payment when due of any sum owing to Seller or otherwise defaults in the performance of any of its obligations, regardless of the materiality of such default, or becomes insolvent or makes an assignment for the benefit of creditors or if a petition is filed by or against Customer under any bankruptcy or insolvency law or for the appointment of a receiver of Customer, Seller may recover all sums due or to become due and in addition may without prior notice (a) recover any loss and damages sustained, (b) rescind the transaction, in whole or in part, (c) ship any undelivered merchandise to Customer or hold it as bailee for Customer or store it in a public warehouse, in either case at Customer's risk and expense and recover the price for such merchandise, (d) resell any undelivered merchandise and recover from Customer the difference between the price for such merchandise under the applicable Acknowledgement and the resale price, plus expenses and charges, or (e) defer deliveries until default is made good. If Customer fails to furnish any instructions or specifications, Seller shall also have the right to determine the specifications for itself and/or ship to Customer's address stated or to Customer's address last known to Seller, and Seller shall be relieved from all further obligations with respect thereto.  Acceptance by Seller of payment for any delivery or shipment shall not be construed as a waiver by Seller of any default on the part of the Customer.  Seller’s rights and remedy herein are not exclusive and shall be cumulative and in addition to any other right or remedy given herein or now or hereafter existing under law. Product delivered by Seller shall to the extent permitted by the law of Customer’s country remain the property of the Seller until all amounts owed by Customer to Seller have been indefeasibly paid in full.

 Terms of Payment: Terms of payment run from date of invoice, not date of shipment or delivery. A one and one half percent per month service charge (18 percent per annum) or the highest permissible rate under applicable law, whichever is less, shall be assessed on late payments and shall be payable on demand. Payments are to be made at the direction and to the location specified by Seller. If at any time and for any reason, including but not limited to refusal or failure to adequately respond to requests for financial information, the financial condition of Customer shall become unsatisfactory to Seller, Seller may at any time delay, suspend or cancel shipments or demand cash or satisfactory security on shipments or deliveries or prior to placing any mill order or prior to the last date to change any mill order or otherwise change any previous payment terms, without impairing the obligation of Customer to take and pay for the quantity of goods ordered. At its option Seller may make deliveries of withheld shipments so withheld during or after the term hereof, and Customer's refusal to accept such shipments shall constitute a default.

 

No Merchandise shall be accepted for return prior to inspection by Seller's authorized representative, and in no event will a return of allegedly defective merchandise be acceptable for credit if the containers, wrappers, or labels are defaced, damaged, removed or covered, or if the merchandise is not in its original container. Credit will only be allowed on defective merchandise returned within sixty (60) days of the date of delivery, and all returned merchandise is subject to inspection by Seller. No claim will be allowed by Seller after the merchandise either has been cut, printed or written upon, or otherwise altered from its original form.

 

Miscellaneous: No provision hereof or any other agreement may be modified, amended or rescinded unless by a written instrument executed by Seller and Customer. The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of these Terms or any other agreement, or to take advantage of any of its rights, shall not operate as a continuing waiver of such rights.  If Customer breaches any of the terms herein, including failure to timely pay for any goods ordered, necessitating any collection efforts or legal action by Seller, Customer agrees that Seller shall be entitled to recover its reasonable costs incurred including, but not limited to, reasonable attorneys’ fees and costs. Seller shall have the right to assign any and all accounts receivable from, and any rights against, Customer to any person.  Customer shall not have the right to offset any amounts owed to it by Seller or any of its affiliates against amounts owed by Customer to Seller.  This transaction shall be governed by the laws of the State of New York, without reference to choice of law rules, and the Convention on Contracts for the International Sale of Goods shall not be applicable. Any legal action or proceeding concerning the validity, interpretation and enforcement of these terms or any sale of goods by Seller, matters arising out of or related to these terms or any sale of goods by Seller or its making, performance or breach, or related matters shall be brought exclusively in the courts of the State of New York in the County of New York or of the United States of America for the Southern District of New York, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues and THE PARTIES WAIVE TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING. Process in any such action may be served by registered or certified mail addressed to a party at its last known address.

 

forms/terms and conditions/ CN Specialty v5 (rev 5-4-20)